61967J0004

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1 . PROCEDURE - PERIODS PRESCRIBED FOR INSTITUTING PROCEEDINGS - LEGAL NATURE

2 . PROCEDURE - APPLICATION FOR ANNULMENT - APPLICATION FOR DAMAGES - CLOSE CONNEXION BETWEEN THE TWO - INADMISSIBILITY OF APPLICATION FOR ANNULMENT BRINGING WITH IT INADMISSIBILITY OF APPLICATION FOR DAMAGES

1 . THE PERIODS PRESCRIBED FOR INSTITUTING PROCEEDINGS ARE MANDATORY IN NATURE AND ARE NOT SUBJECT TO THE DISCRETION OF THE PARTIES OR OF THE COURT .

2 . THE INADMISSIBILITY OF A REQUEST FOR ANNULMENT BRINGS WITH IT THE INADMISSIBILITY OF A CLAIM FOR DAMAGES WITH WHICH IT IS CLOSELY CONNECTED .

IN CASE 4/67

ANNE MULLER ( NEE COLLIGNON ) ( WIFE OF JEAN-CLAUDE MULLER ), AN OFFICIAL OF THE COMMISSION OF THE EUROPEAN COMMUNITIES, RESIDING IN LUXEMBOURG, ASSISTED BY GASTON THORN, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF HIS COUNSEL AT 78 GRAND RUE,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, TAKING THE PLACE OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY UNDER ARTICLE 9 OF THE TREATY OF 8 APRIL 1965, REPRESENTED BY ITS LEGAL ADVISER, PIERRE LAMOUREUX, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 2 PLACE DE METZ,

DEFENDANT,

APPLICATION FOR :

- ANNULMENT OF THE APPOINTMENT MADE FOLLOWING INTERNAL COMPETITION HA/INT/15/A ANNOUNCED ON 25 FEBRUARY 1966 AND IN WHICH THE APPLICANT TOOK PART;

- AN ORDER THAT AFTER THE ANNULMENT OF THE SAID APPOINTMENT THE DEFENDANT SHALL APPOINT THE APPLICANT TO THE SAID POST WITH RETROACTIVE EFFECT;

- AN ORDER FOR THE PAYMENT BY THE DEFENDANT TO THE APPLICANT, BY WAY OF DAMAGES, OF A SUM ASSESSED AT BF 30 000, FOR THE LOSS OF INCOME SUFFERED BY THE APPLICANT BY REASON OF BEING DENIED THE SAID POST AND FOR THE INJURY SUFFERED BY HER BY REASON OF THE WRONGFUL ACT OF THE DEFENDANT ARISING OUT OF THE CIRCUMSTANCES IN WHICH IT WAS DECIDED NOT TO APPOINT HER;

- AN ORDER FOR COSTS AGAINST THE DEFENDANT,

P.372

ADMISSIBILITY

IN ITS PLEADINGS, THE DEFENDANT ON THE ONE HAND LEAVES THE QUESTION OF ADMISSIBILITY TO BE DETERMINED BY THE COURT AND ON THE OTHER HAND AT THE END OF ITS CONCLUSIONS CONTENDS THAT THE APPLICATION IS INADMISSIBLE . DURING THE ORAL PROCEDURE THE DEFENDANT EXPLAINED THIS APPARENT CONTRADICTION, SAYING THAT, ALTHOUGH IT REGARDED THE APPLICATION TO BE INADMISSIBLE, IT DID NOT WISH TO ' SHELTER BEHIND THE SAID INADMISSIBILITY ' BUT TO LEAVE THE COURT FREE TO RAISE THE MATTER OR NOT .

HOWEVER, THE PERIODS PRESCRIBED FOR INSTITUTING PROCEEDINGS ARE MANDATORY IN NATURE AND ARE NOT SUBJECT TO THE DISCRETION OF THE PARTIES OR OF THE COURT . THE PRESENT CASE IS PARTICULARLY WELL SUITED TO DEMONSTRATE HOW JUSTIFIED THIS RULE IS, SINCE THE PROCEEDINGS CONCERN NOT ONLY THE DEFENDANT INSTITUTION BUT ALSO, AND POSSIBLY TO A GREATER DEGREE, THE OFFICIAL WHOSE APPOINTMENT IS THE SUBJECT-MATTER OF THE APPLICATION .

THE PURPOSE OF THE APPLICATION IS, IN THE FIRST PLACE, THE ANNULMENT OF THE APPOINTMENT OF MRS GRAF AND AN ORDER THAT THE DEFENDANT SHOULD APPOINT THE APPLICANT WITH RETROACTIVE EFFECT TO THE POST FOR WHICH SHE HAD COMPETED .

IN THE SECOND PLACE, ITS PURPOSE IS AN AWARD OF DAMAGES FOR THE LOSS OF INCOME WHICH THE APPLICANT IS SAID TO HAVE SUFFERED BY REASON OF THE DECISION NOT TO APPOINT HER, AS THE CIRCUMSTANCES IN WHICH THIS DECISION CAME ABOUT ARE SAID TO AMOUNT TO A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT INSTITUTION .

THE FIRST HEAD OF CLAIM IN THE APPLICATION TAKES THE FORM OF A CLAIM DIRECTED AGAINST THE IMPLIED REFUSAL RESULTING FROM THE FAILURE ON THE PART OF THE PRESIDENT OF THE HIGH AUTHORITY TO GIVE A REPLY TO THE COMPLAINT WHICH IS SAID TO HAVE BEEN MADE BY THE APPLICANT IN HER LETTER OF 13 OCTOBER 1966 .

THIS LETTER, HOWEVER, REFERS TO THE REQUEST WHICH THE APPLICANT MADE ON 2 SEPTEMBER 1966 TO THE PRESIDENT OF THE HIGH AUTHORITY IN WHICH SHE ASKED HIM ' TO EXAMINE TO WHAT EXTENT AND BY WHAT MEANS YOU CONSIDER THAT IT WOULD BE POSSIBLE TO MAKE UP FOR THE INJURY WHICH I HAVE SUFFERED TO MY GOOD NAME AND TO MY CAREER PROSPECTS '. THE LETTER OF 13 OCTOBER DOES NO MORE THAN STATE THAT THE REQUESTS MADE ON 2 SEPTEMBER ARE NOW TO BE REGARDED AS FORMALLY SUBMITTED WITHIN THE MEANING OF ARTICLE 90 OF THE STAFF REGULATIONS OF OFFICIALS . THE LETTER OF 13 OCTOBER 1966 VIRTUALLY CROSSED WITH A LETTER FROM THE PRESIDENT OF THE HIGH AUTHORITY OF 17 OCTOBER 1966 WHICH FULLY ANSWERED THE REQUEST CONTAINED IN THE LETTER OF 2 SEPTEMBER 1966 TO WHICH THE LETTER OF 13 OCTOBER 1966 REFERRED . THE CLAIM THAT THE REQUEST THROUGH OFFICIAL CHANNELS IS ONLY CONTAINED IN THE LETTER OF 13 OCTOBER 1966 AND THAT THE LETTER OF 17 OCTOBER DOES NOT REPLY TO IT CANNOT THEREFORE SUCCEED .

DURING THE ORAL PROCEDURE COUNSEL FOR THE APPLICANT AGAIN REFERRED TO CONFIDENTIAL DISCUSSIONS AND CORRESPONDENCE WHICH ARE SAID TO BE CAPABLE OF PROVING THAT THE LETTER OF 17 OCTOBER 1966 DID NOT REPRESENT THE FINAL VIEWS OF THE PRESIDENT OF THE HIGH AUTHORITY . HOWEVER, SUCH STATEMENTS WHICH, MOREOVER, ARE DIFFICULT TO VERIFY BY REASON OF THEIR CONFIDENTIAL NATURE, CANNOT BE TAKEN INTO CONSIDERATION . THUS THERE WAS NO IMPLIED REFUSAL IN THE PRESENT CASE .

THUS, EVEN SUPPOSING THAT THE REQUEST THROUGH OFFICIAL CHANNELS DID INDEED REFER TO THE APPOINTMENT OF MRS GRAF AND TO THE DECISION NOT TO APPOINT THE APPLICANT, WHICH TO SAY THE LEAST IS OPEN TO QUESTION, THE PERIOD FOR BRINGING AN APPEAL AGAINST THE MEASURES COMPLAINED OF EXPIRED, AT THE LATEST, THREE MONTHS AFTER THE REPLY OF 17 OCTOBER 1966 . ACCORDINGLY THE APPEAL MADE ON 3 FEBRUARY 1967 IS OUT OF TIME .

IT REMAINS TO BE CONSIDERED WHETHER THE FACT THAT THE APPLICATION FOR ANNULMENT HAS BEEN FOUND TO BE INADMISSIBLE ENTAILS THE INADMISSIBILITY OF THE CLAIM FOR DAMAGES ON THE GROUND OF A WRONGFUL ACT OR OMISSION WHICH FORMS PART OF THE SAID APPLICATION .

THE CLOSE CONNEXION BETWEEN THE CLAIM FOR DAMAGES AND THE APPLICATION FOR ANNULMENT IS CONFIRMED BY THE APPLICANT'S OBSERVATION THAT THE ASSESSMENT OF THE DAMAGE DEPENDS UPON THE DECISION OF THE COURT, THAT IS TO SAY, THE DATE OF HER APPOINTMENT TO THE POST WHICH SHE SAYS IS RIGHTLY HERS .

IT IS CLEAR FROM THIS THAT THE DAMAGE IS FOUNDED ON THE NON-APPOINTMENT OF THE APPLICANT AND MORE EXACTLY ON THE APPOINTMENT OF MRS GRAF . THE APPLICANT COULD HAVE AVOIDED THIS DAMAGE BY CONTESTING THE MEASURES IN QUESTION IN GOOD TIME . IT IS APPARENT FROM THE FOREGOING THAT SHE HAS FAILED TO DO SO .

IN THESE CIRCUMSTANCES SHE CANNOT REPAIR THIS OMISSION AND, SO TO SPEAK, ACQUIRE THE OPPORTUNITY OF BRINGING A NEW APPEAL BY MEANS OF A CLAIM FOR DAMAGES .

ACCORDINGLY THE INADMISSIBILITY OF THE REQUEST FOR ANNULMENT MUST INEVITABLY BRING WITH IT THE INADMISSIBILITY OF THE CLAIM FOR DAMAGES .

THE APPEAL IS INADMISSIBLE . THE APPLICANT MUST THEREFORE BE ORDERED TO BEAR HER OWN COSTS . THE DEFENDANT MUST BEAR ITS OWN COSTS IN ACCORDANCE WITH THE RULES OF PROCEDURE .

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPEAL AS INADMISSIBLE;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS OF THE PROCEEDINGS, SAVE THOSE INCURRED BY THE DEFENDANT .